Flores v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
October 28, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-50485
_______________
ANDREW FLORES,
Petitioner-Appellant,
VERSUS
DOUG DRETKE,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
_________________________
Appeal from the United States District Court
for the Western District of Texas
m SA-98-CV-1169
_________________________
Before HIGGINBOTHAM, SMITH, and
CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Andrew Flores applies for a certificate of
appealability (COA) of the denial of his
* Pursuant to 5TH CIR. R. 47.5, the court has
(continued...)
*(...continued)
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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petition for writ of habeas corpus. 28 U.S.C.
§ 2253(c)(1)(A); Miller-El v. Cockrell, 537
U.S. 322, ___, 123 S. Ct. 1029, 1039 (2003).
We deny the application.
I.
In determining whether to issue a COA, we
conduct an overview of the petitioner’s claims
and make a general assessment of their merits.
The standard of review is whether a petitioner
“has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)-
(1)(A); Miller-El, 537 U.S. at ___, 123 S. Ct.
at 1039. This threshold showing does not re-
quire the petitioner to demonstrate that his ap-
peal will succeed. Id. Where a district court
rejects a claim on the merits, the petitioner
“‘must demonstrate that reasonable jurists
would find the district court’s assessment of
the constitutional claims debatable or wrong.’”
Id. at 1040 (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)).
The determination of whether a COA
should issue must be made “through the lens
of the deferential scheme laid out in 28 U.S.C.
§ 2254(d).” Barrientes v. Johnson, 221 F.3d
741, 772 (5th Cir. 2000). Under that scheme,
deference to a state court decision is required
for any claim that was adjudicated on the mer-
its in state court, unless the decision was either
“contrary to, or involved an unreasonable
application of, clearly established Federal law,
as determined by the Supreme Court of the
United States,” Yarborough v. Gentry, No.
02-1597, 2003 U.S. LEXIS 7701 (U.S. Oct.
20, 2003) (per curiam) (quoting 28 U.S.C. §
2254(d)(1)), or the decision “was based on an
unreasonable determination of the facts in light
of the evidence presented in the state court
proceeding,” 28 U.S.C. § 2254(d)(2).
Section 2254(d)(1) speaks to questions of
law and mixed questions of fact and law re-
solved by the state courts. See Moore v. John-
son, 225 F.3d 495, 501(5th Cir. 2000). The
phrase “clearly established federal law” refers
to the “holdings, as opposed to the dicta of
[the Supreme Court’s] decisions as of the time
of the relevant state-court decision.” Williams
v. Taylor, 529 U.S. 362, 412 (2000). Under
the related § 2254(e)(1), a federal habeas court
will presume correct the factual findings of the
state court unless the petitioner “rebut[s] the
presumption of correctness by clear and
convincing evidence.” See also Miller-El, 537
U.S. at ___, 123 S. Ct. at 1042.
II.
Flores asserts that he was not competent to
make his plea and that it was not entered into
knowingly, intelligently, and voluntarily. With
respect to his competence, Flores asserts that
he suffers from psychological and neurological
impairments that prevented him from
completely understanding the proceedings
against him. Therefore, he argues, there is
room for reasonable jurists to differ on wheth-
er his impairments prevented him from being
able to make the rational choices necessary to
enter a guilty plea.
The test for deciding competence to enter
a guilty plea is “whether [defendant] has suf-
ficient present ability to consult with his lawyer
with a reasonable degree of rational
understandingSSand whether he has a rational
as well as factual understanding of the
proceedings against him.” Dusky v. United
States, 362 U.S. 402, 402 (1960) (per curiam);
see also Godinez v. Moran, 509 U.S. 389,
398-99 (1993). Because a state court’s
competency finding is presumed correct, a
petitioner bears a heavy burden in contesting
his competency during federal collateral
review. DeVille v. Whitley, 21 F.3d 654, 656
(5th Cir. 1994).

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In arguing that he was incompetent to enter
a guilty plea, Flores relies on (1) a history of
childhood sexual and physical abuse, long-term
drug abuse, and resulting emotional and
organic brain impairments; (2) the testimony of
psychiatrist Raymond Potterf at the
evidentiary hearing held during the state
habeas proceeding, which Flores contends
established that, because of his mental
impairments, he tends to respond to authority
figures in “almost a frozen status . . . very
fearful”; (3) Potterf’s testimony that Flores
would “probably go along with” a directive
from an attorney; and (4) Potterf’s suggestion
that if Flores were directed by an authority
figure, he would plead guilty to “take the
choice that would get him out of the situation
as quickly as possible.” Potterf, however, dis-
avowed any personal knowledge of, and did
not express any opinion as to whether, Flores
actually experienced his “frozen state” at a
time near entering his guilty plea, or that he
felt pressured to plead guilty by his attorney.
Ultimately, Potterf expressed the opinion
that Flores was competent to enter his guilty
plea. Moreover, Flores has presented no evi-
dence that he suffered from a “frozen status”
at or near the time he entered his guilty plea.
During trial, the state judge observed that
“[t]hroughout the proceedings, from pre-trial
through his punishment phase, [Flores]
displayed through his testimony, his
mannerisms, his disposition, and his behavior,
that he was competent as defined.”
Moreover, the federal district court noted
that there is no evidence that Flores’s attorney
ever asked or pressured him to plead guilty.
Accordingly, the state court made no
“unreasonable interpretation of the facts in
light of the evidence presented,” Godinez, 509
U.S. at 400, in concluding that Flores was
competent to enter a guilty plea.
Although Flores also asserted that his guilty
plea was not made knowingly, intelligently,
and voluntarily,1 he was admonished at length
by the trial court regarding the nature and con-
sequences of a guilty plea. As the federal dis-
trict court observed, Flores represented, on the
record in open court, that he was pleading
guilty because he was guilty and for no other
reason, that no threats or promises induced his
plea, that he understood that he would receive
either a life sentence without parole for thirty-
five years or the death penalty, that he was
waiving the right to a jury trial, that he was
pleading of his own free will, and that he un-
derstood that his plea was an admission to all
the elements of his offense.
Flores argues that despite all this, his
aforementioned mental and emotional
impairments forced him to respond to the
authority of the court in a fearful and “frozen
status.” Again, he relies on Potterf’s
testimony. To the contrary, however, the trial
court’s observation of Flores’s demeanor
during the guilty plea hearing and throughout
the trial gave no indication that Flores
experienced such an episode. He likewise has
produced no evidence that he experienced the
“frozen status” about which Potterf
speculated.
We see no reason to differ with the district
court’s conclusion that Flores’ plea was
knowing, intelligent, and voluntary.
Accordingly, the state court made no
“unreasonable interpretation of the facts in
light of evidence presented” in so concluding.
1 See Godinez, 509 U.S. at 400; Boykin v.
Alabama, 395 U.S. 238, 244 (1969); Taylor v.
Whitney, 933 F.2d 325, 329 (5th Cir. 1991).

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See Godinez, 509 U.S. at 400.
III.
Flores contends that his trial attorney was
ineffective in two respects, depriving him of
his Sixth Amendment right to counsel. First,
he argues that counsel was inadequate by fail-
ing to object to the trial court’s decision to
grant the prosecutor’s challenge for cause of
a venireman, which failure waived the issue for
appellate review. Second, Flores asserts that
his attorney failed to present mitigating details
about his background and history, which he
suggests would have swayed jurors to spare
his life.
To prevail on a claim of ineffective assist-
ance, a habeas petitioner must satisfy the two-
pronged test in Strickland v. Washington, 466
U.S. 668, 687 (1984). He must show (1) that
counsel rendered deficient performance and
(2) that counsel’s deficiency resulted in actual
prejudice. For a federal court to grant habeas
relief for ineffective assistance, the “state court
must have unreaso nably applied the [Wash-
ington] standard.” Santellan v. Cockrell, 271
F.3d 190, 198 (5th Cir. 2001). A petitioner
must show that “in light of all circumstances,”
his representation “fell below an objective
standard of reasonableness” or “prevailing pro-
fessional norms.” Washington, 466 U.S. at
688-90; see Gentry, 2003 U.S. LEXIS 7701,
at *6-*7. Judicial scrutiny of the counsel’s
performance must be “highly deferential” and
cognizant of the “distorting effect of
hindsight.” Washington, 466 U.S. at 689-90.
A.
Flores’ first argument stems from the failure
of his attorney to object to the prosecution’s
challenge to prospective juror Roundtree, who
said that she strongly opposed the death
penalty in all circumstances. The proper
standard for determining when a prospective
juror may be excluded for cause because of his
views on capital punishment is to decide
whether “the juror’s views would ‘prevent or
substantially impair the performance of his du-
ties as a juror in acco rdance with his instruc-
tions and his oath.’” Wainwright v. Witt, 469
U.S. 412, 424 (1985) (quoting Adams v. Tex-
as, 448 U.S. 12, 45 (1980)).
Roundtree informed the court and the par-
ties that she did not believe in capital punish-
ment and did not wish to serve on a jury where
the death penalty was an option. She
repeatedly insisted that she would not answer
the special issues based on the evidence if
those answers resulted in the death penalty and
would not obey the court’s instructions
regarding the law. These circumstances
constituted a “substantial impairment” to her
ability to answer the punishment issues, and
thus she was properly subject to a challenge
for cause. Flores urges that Roundtree never
said she would “consciously distort” her
answer during the punishment phase, but such
an express articulation of a substantial
impairment of her ability to answer the
punishment issues is unnecessarySSshe was
properly subject to a challenge for cause.
Flores’s lawyer reasonably could have con-
cluded the same and realized that his objection
would have been frivolous. A “[f]ailure to
make a frivolous objection does not cause
counsel’s performance to fall below an
objective level of reasonableness.” Green v.
Johnson, 160 F.3d 1029, 1037 (5th Cir.
1998))
B.
Flores claims deficient counsel with respect
to his attorney’s failure to investigate and in-
troduce, as mitigation evidence, elements of

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his background and mental disposition during
the sentencing proceedings. As the district
court observed, however, Flores presented no
evidence to support the claim that his trial at-
torney’s investigation was unreasonable.
The important question is whether counsel
was inadequate in failing to introduce the sug-
gested elements at trial. Flores argues that his
attorney should have presented “evidence of
the neurologic brain impairment of the
Applicant, the history of physical and sexual
abuse of the Applicant, the lack of a father
figure for the Applicant during his formative
years, the Applicant’s severe problems in
identity crisis, the drug history of the
Applicant and his siblings, and the intoxication
of the Applicant during the time of the
offense.” Flores also produced a juror from
his case, Ms. Zuazua, who says that had she
heard the details about Flores’s traumatic
childhood, she would not have voted for the
death penalty.
We must, however, judge Flores’ counsel’s
decisions relative to the circumstances at the
time. Washington, 466 U.S. at 688-90. As
the district court observed, Flores’s suggested
background informationSSof a history of crisis
and violenceSScuts both ways. His lack of
self-control and his history of violence and
drug abuse, especially, demonstrate violent
and unstable propensities. At trial, Flores’s at-
torney took the approach of highlighting his
good side, bringing witnesses to testify to his
good character and arguing that the murder
was an aberration. Introducing the evidence
that Flores now suggests would have
undermined that strategy.
In short, the district court reasonably con-
cluded that Flores’s attorney had valid strate-
gic reasons for shifting focus away from Flor-
es’s troubles. It accordingly was not deficient
performance to decline to introduce the
subject evidence in mitigation.
The application for COA is DENIED.

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